Exhibit 10.2


 


Amendment Number One To


Development, Publishing and Distribution Agreement


 


This AMENDMENT NUMBER ONE TO
DEVELOPMENT, PUBLISHING AND DISTRIBUTION AGREEMENT is entered into this
    day of July, 2004, by and between IXIA, a California
corporation doing business at 26601 West Agoura Road, Calabasas, CA 91302
(“Ixia”), and RADVIEW SOFTWARE, LTD., an Israeli corporation with corporate
headquarters located at 7 New England Executive Park, Burlington, Massachusetts
01803 (“RadView”).


 


Ixia and RadView are parties
to a certain Development, Publishing and Distribution Agreement dated February
7, 2003 (the “Agreement”).


 


Ixia and RadView hereby
agree to modify and amend the Agreement as follows:


 


1.             All capitalized terms used herein shall have
the meanings set forth in the Agreement.


 


2.             Notwithstanding anything to the contrary
contained in Section 16.3.2 of the Agreement, in the event that Ixia
exercises the Option, then Ixia shall have the right, in its sole discretion,
to pay RadView a one-time payment in the amount of Two Hundred Fifty Thousand
Dollars ($250,000) in lieu of paying royalties under Section 16.3.2 above (the
“In-Lieu Payment”), which payment shall be in addition to the Option Exercise
Fee.  In the event Ixia chooses to pay
the In-Lieu Payment, Ixia shall pay the In-Lieu Payment to RadView within five
(5) days after Ixia receives from RadView all Source Materials in accordance
with Section 13.2 of the Agreement. 
Upon receipt by RadView of the In-Lieu Payment, Ixia shall have no
obligation to pay, and RadView shall have no right to receive, any royalties
with respect to the Products, under any circumstances whatsoever.  Ixia acknowledges and agrees that, following
its exercise of the Option, Ixia shall be solely responsible for licensing any
third party software required by it to incorporate enabling keys in the
Products, (including, without limitation paying any applicable license fees for
such software); provided, however, that for such period of time during the term
of the Agreement when Ixia is reselling the Products using enabling keys
provided by RadView then RadView shall be responsible for the royalties
attributable to the enabling keys provided by RadView.  The third party software currently used by
RadView for creating enabling keys is FlexLM by Macrovision.  In the event that there is any third party
software required by Ixia to incorporate enabling keys in the Products, but
which is not disclosed in this Amendment Number One, RadView shall be solely
responsible for, and shall timely make, any payments with respect to such third
party software which arise in connection with the generation of the enabling
keys for, and/or incorporating the enabling keys into, the Products, whether
such generation and/or incorporation is done by RadView or by Ixia.


 


3.             Ixia’s rights under Paragraphs 4 and 5 below
are independent of whether Ixia chooses to pay the In-Lieu Payment or chooses
to pay royalties as set forth in Section 16.3.2 of the Agreement.  Further, Ixia’s rights under Paragraphs 4
and 5 below are independent of each other, and Ixia is free to exercise its
rights under one of Paragraphs 4 and 5 below without exercising its rights
under the other.


 


4.             Notwithstanding anything to the contrary
contained in Section 16.5 of the Agreement, in the event that Ixia
exercises the Option, then Ixia shall have the right, in its sole discretion,
to receive the technical assistance provided in Section 16.5 by sending Ixia
personnel to RadView, in lieu of having RadView station


 


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RadView personnel at Ixia.  If Ixia elects the foregoing alternative,
Ixia may station up to three (3) Ixia engineers to RadView’s Tel Aviv R&D
facility to work on transfer of knowledge for the WebLOAD technology, for a
continuous period of up to ninety (90) days from the day the first Ixia
engineer arrives (the “Onsite Period”). 
The Onsite Period shall commence no later than August 15, 2004.  During the Onsite Period, RadView shall
dedicate one (1) technically-knowledgeable project manager who will devote an
average of one-half his or her weekly work hours during the Onsite Period.  In addition, RadView will bring in
additional engineering resources as reasonably needed by the Ixia personnel.  RadView will keep a log of the hours of
project management and engineering consulting services (such services, the
“Transition Services”) provided to Ixia by RadView hereunder.  RadView shall provide up to six hundred
forty (640) man-hours of Transition Services at no charge to Ixia (the “Transition
Services Allowance”).  In the event that
Ixia requests, and RadView provides, any Transition Services in excess of the
Transition Services Allowance, such excess Transition Services shall be charged
to Ixia at the rate of One Hundred United States Dollars (US$100) per man-hour,
provided that RadView shall not be required to provide more than eight hundred
(800) man-hours of such excess Transition Services.  In any event, Ixia’s right to receive Transition Services
pursuant to this Paragraph 4 shall terminate upon the expiration of the Onsite
Period unless otherwise agreed upon by the parties in writing.  Furthermore, if Ixia wishes to extend the
Onsite Period, or if Ixia causes the Onsite Period to be interrupted (other
than because of a force majeure event) and wishes to have the time made up
after the calendar date on which the Onsite Period would have ended if there
had been no interruption, then Ixia may only do so with RadView’s consent, in
RadView’s sole discretion.  If Ixia
elects to send its engineers to RadView’s site in Israel, as outlined above,
Ixia may still request, and RadView shall provide, on a mutually agreeable
schedule, up to two man weeks of engineering support services at Ixia’s site in
California in order to facilitate an early transition of development
capabilities.  Ixia shall be responsible
for all reasonable travel-related expenses incurred by the RadView personnel
going to Ixia’s site, in accordance with Section 16.5 of the Agreement.   In addition, all such support services shall
be deemed Transition Services for purposes of this Amendment and shall be
counted toward the Transition Services Allowance defined above.


 


5.             If Ixia exercises the Option, then Ixia shall
have the right, which must be exercised, if at all, not later than one hundred
twenty (120) days after the effective date of the exercise of the Option (as
such date is defined in Section 16.2 of the Agreement), but not the obligation,
to hire, subject to the terms of this paragraph 5, one (1) senior engineer from
a list of qualified RadView personnel, which list shall be agreed to by both
Ixia and RadView.  RadView shall prepare
such list making a good faith effort to identify well-qualified senior
engineers who might be willing to relocate to Ixia’s facility in Calabasas,
California, USA. If Ixia elects to exercise the above-referenced right to hire,
its exercise shall conform to the following procedure, any such exercise to be
completed within the above-referenced one hundred twenty (120) day period.  Ixia may make one or more offers of
employment to and enter into negotiations with any one candidate on the
candidate list.  If such candidate
accepts an offer of employment with Ixia, then Ixia’s right to hire as set
forth in this paragraph shall automatically expire and be of no further force
or effect.  If the first candidate
refuses Ixia’s offers of employment, and Ixia elects to pursue a different
candidate from the candidate list, then (a) Ixia shall notify RadView of such determination,
and (b) Ixia’s right to hire the first candidate to whom it offered employment
shall automatically terminate and Ixia shall have no further right to hire such
candidate under the terms of this paragraph even if such candidate should
request employment from Ixia.  Ixia may
then follow the same procedure with the second, and if applicable, third
candidate from the agreed upon list; in each case, Ixia shall automatically
relinquish all rights to solicit and/or hire the candidate(s) previously
solicited. If the third candidate refuses Ixia’s offers of employment, then
Ixia shall have no further right under this paragraph 5 to hire any RadView
employee.  The limitation that Ixia may
only hire one (1) of those three (3) candidates shall continue to apply in full
at all times during which Ixia has the right under this Paragraph 5 to hire any
RadView senior engineer.  The right to
hire any one of those candidates shall automatically expire at the end of the
one hundred twenty (120) day period whether or not Ixia


 


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has made offers of employment to any
candidate.  RadView agrees not to
solicit any candidate with counter offers or other enticements, or to do
anything to discourage any candidate from agreeing to interview with Ixia or
from accepting an offer of employment from Ixia.  Ixia and RadView both acknowledge that this recruitment effort
must be handled in a discreet and confidential manner so as to not to disrupt
the normal operations of the RadView engineering department.  RadView does not represent, warrant or
guarantee that any of the candidates will accept any offer of employment from
Ixia.  This paragraph 5 provides a
limited right to Ixia to hire one (1) RadView employee from the list of qualified
candidates referenced above.  In no event
shall any provision of this paragraph be construed to qualify, limit or
diminish the force and effect of Section 26.11 of the Agreement except to the
extent expressly provided above. 
Furthermore, in consideration of the solicitation and hiring right set
forth above, Ixia agrees that the period of applicability of Section 26.11 (No
Hire) of the Agreement shall be extended through the date falling two (2) years
following the expiration of the Onsite Period (including any extensions thereof
which may be agreed to by the parties).


 


6.             The parties agree that Section 16.6.5 of the
Agreement should be revised to read as follows:


 


“In addition, following
Ixia’s exercise of the Option and payment of the Option price and for so long
as Ixia is paying royalties to RadView hereunder, RadView, shall periodically
and as available, provide Ixia with the Source Materials relating to new
releases, and shall also, at the end of such royalty payment period, deliver to
Ixia the Source Materials for the most current version of the Products then
being shipped by RadView.”


 


Further, in the event that Ixia exercises the
Option and makes the In-Lieu Payment instead of paying royalties, RadView’s
obligations, and Ixia’s rights, under Section 16.6.5 of the Agreement, shall
nonetheless apply fully, except that the period of RadView’s obligations and
Ixia’s rights under such Section 16.6.5 shall end on the first (1st)
anniversary of the effective date of Ixia’s exercise of the Option (the
“Post-Option Support Period”).  .  Without limiting or qualifying the rights of
either party under Section 16.6.5, the parties agree that during the
Post-Option Support Period, if Ixia identifies a deficiency in the Source
Materials delivered by RadView, Ixia shall notify RadView of such deficiency and
RadView shall promptly deliver such additional Source Materials as may address
such deficiency if such additional materials are then in existence and
available, it being understood and agreed to by both parties that nothing in
this Amendment shall be construed as requiring RadView to develop new or
additional materials for any reason whatsoever.


 


7.             Except as expressly set forth herein, the
Agreement shall be and remain in all respects as it now is, and each party
retains all of its respective rights under the Agreement.


 


IN WITNESS WHEREOF, the
parties have executed this Amendment as of the date first set forth above.


 


 


	
  IXIA

  	
   

  	
  RADVIEW
  SOFTWARE LTD.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  ERROL GINSBERG

  	
   

  	
  By:

  	
  /s/
  ILAN KINREICH

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Errol
  Ginsberg

  	
   

  	
  Name:

  	
  Ilan
  Kinreich

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President
  and CEO

  	
   

  	
  Title:

  	
  President
  and CEO

  	
   

  
												



 


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  Date:

  	
  July
  7, 2004

  	
   

  	
  Date:

  	
  July
  7, 2004

  	
   

  



 


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